In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Saturday, 30 August 2014

An American academic has uploaded 2.6 million of public domain images onto a site on photo sharing service Flickr to allow users to take a "digital trip through time". Kalev Leetaru has uploaded an astonishing 2.6 million fully-tagged images and drawings from books as part of the Internet Archive Organisation's scanning process. Leetaru aims to finally upload 12 million images and is urging others to join in the process, and include text, telling the BBC “Any library could repeat this process. It's actually my hope, that libraries around the world run this same process of their digitised books to constantly expand this universe of images.” The Internet Archive had used an optical character recognition (OCR) program to analyse each of its 600 million scanned pages in order to convert the image of each word into searchable text. As part of the process, the software recognised which parts of a page were pictures in order to discard them. Mr Leetaru reversed the process and wrote a code that used this information to go back to the original scans, extract the regions the OCR program had ignored, and then save each one as a separate file in the Jpeg picture format. The images are all tagged meaning they can be easily searched. The software also copied the caption for each image and the text from the paragraphs immediately preceding and following it in the book and Mr Leetaru said""Type in the telephone, for example, and you can see that all the initial pictures are of businesspeople, and mostly men. Then you see it morph into more of a tool to connect families" adding "You see another progression with the railroad where in the first images it was all about innovation and progress that was going to change the world, then you see its evolution as it becomes part of everyday life."https://www.flickr.com/photos/internetarchivebookimages/ and more on the BBC here

Friday, 29 August 2014

A federal judge has dismissed lawsuit filed by Arrow Productions, the owner of the copyright in the 1972 iconic porn movie “Deep Throat”. The case was brought against The Weinstein Co, the company that produced the biographical 2013 movie “Lovelace” which looked look at the life of Linda Lovelace, star of “Deep Throat”. According to Arrow the 2013 film recreated three scenes “word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting and reproduced costumes and settings” from the original film. U.S. District Judge Thomas Griesa said that the movie was “entitled to a presumption of fair use,” concluding that its use of the three scenes from “Deep Throat” added a “new, critical perspective on the life of Linda Lovelace and the production of ‘Deep Throat.". The judge also dismissed trade mark claims.TiVo has announced that it is releasing a new product - the “Roamio Over-the-Air [OTA] DVR”) that will allow customers who don’t have cable/satellite service to record, store, and playback over-the-air television programming (provided they have an HD digital antenna pulling in the signals). Now what does that remind the CopyKat of - ohhhhhh yes - the Aereo service that the Supreme Court declared to be infringing in June. However the key difference is that this is a customer's box - allowing customers to record programmes where they already had free access, and to play those recordings back to themselves - rather like a video recorder - and that of course reminds us of of that classic 1984 (split 5-4) Supreme Court decision in Sony v. Universal which found that manufacturers of home video player/recorder devices such as Betamax or other VCRs could not be liable for infringement - overturning the The United States Court of Appeals for the Ninth Circuit which had found the manufacturers of betamax manchines liable for contributory infringement. But will the content and broadcast sectors see it that way?The head of the Serbian actors’ association, Nikola Djuricko, has said that actors will demand amendments to the copyright law that would extend legal protection on artists whose performance is visual and not just an audio recording (Article 117 of the Serbian Law on Copyright and Related Rights states that performers are entitled to remuneration for the performances published “on a sound carrier”).

Maslen & Mehra's work

Australian artists Tim Maslen and Jennifer Mehra have issued a legal challenge to the BBC. alleging that a BBC TV promotion for a World War One program infringes their copyright in their 'mirror soldier' artwork. Mehra and Maslen cut silhouette figures from mirrors and then place these mirror people in a landscape and film them with a moving camera. The result is "a interplay between the background and the landscape which is reflected in the mirrors. As the camera shifts, the mirror figures seem to blend with, and then emerge from, the background". ABC explains that the BBC promotion uses the same device but the BBC write to the artists saying ‘the team who worked on this project were not previously aware of your work. With regards to the image itself, the idea was conceived by the creative team at Karmarama, an advertising agency, and brought to life through a commissioned artist and a bespoke shoot. Everything has been created from scratch for this campaign.’ If this gets to court it will be interesting to see what might transpire ......... and it's worth noting that Judge (now Mr Justice) Birss did find infringement in the so-called Red Bus Case (Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1) where a picture of a red bus travelling over a monochrome Westminster Bridge and Houses of Parliement against a white sky had been 're-created' (but not copied) by New English Teas for packaging. Image from MyModernMet.

The International Business Times tells us about Getty Images, whose 'settlement demand letters' - sent to those who the image licensing copany have discovered have used their 80 million images without permission - are often accused of being close to mimicking the behaviour of copyright trolls. Well, Getty has had a nasty shock. Getty's Picscout software picked up an unlicensed image it thought was on the website of of the Schneider Rothman IP Law Group, a Florida law firm (who specialise in copyright litigation). Getty wanted a $380 licensing fee for a photo of a woman texting and driving, which Getty claimed, was being used on the firm’s website without permission. The law firm pointed out that it never displayed the Getty-owned image on its website. Rather, the image was syndicated through a plugin operated by Zemanta Inc., a software company that provides third-party content. Getty have now admitted its error and that it had closed its claim against the law firm - but not before the law firm issued its own legal proceedings alleging “unfair and deceptive business practices.” The law firm is seeking a court declaration that no infringement was committed and an injunction against Getty to stop it from demanding payment where no infringement exists.

The Hollywood Reporter tells us that Sirius XM could be on the verge of fending off the first major challenge in an ongoing lawsuit brought by major record labels over its royalty-free broadcasting of pre-1972 music (which of course includes a wide repertoire including classic rock n roll and tracks from the likes to Bob Dylan, The Beatles and the Rolling Stones). Los Angeles Superior Court Judge Mary Strobel has indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels' interpretation of the law in jury instructions. The plaintiffs believe that state laws protect the misappropriation of older sound recordings that were authored before falling under federal copyright protection. But the judge isn't ready to go so far and has indicated that she feels the label's may be relying on inappropriate case law. This lawsuit is just one of a number of actions against the broadcaster - which include the class action led by Flo & Eddie of the Turtles in which the band behind "Happy Together" contends that state law protects pre-'72 music and the broadcaster can't rely on statutory royalty rates for the recordings - and the claim from collection society SoundExchange claiming Sirius XM underpaid federal royalties for pre-'72 tunes. And Sirius have had a second dose of good news on that front: U.S. District Judge Richard J. Leon in the District of Columbia has approved the Sirius' motion to stay the lawsuit from SoundExchange to await the decision of a hearing with the federal Copyright Royalty Board - the body that sets the statutory rates that Sirius XM must pay - and if these can include revenues purportedly attributable to performances of pre-1972 sound recordings."

Banana Lady

We had previously reported how Cindy Lee Garcia had persuaded a split panel of the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims". Chief Judge Alex Kozinski held that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else. The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces some minimal degree of creativity ... no matter how crude, humble or obvious it might be". The Garcia case is clearly unusual, as Judge Kozinski acknowledged. Actors don’t own copyrights in their performances in Hollywood films — not least as film contracts clearly specify each person’s rights. In Garcia’s case, there was no contract, and thus the unusual (“rarely litigated”) issue arose of whether she had a copyright in her performance. Having over turned the trial judge and with a dissenting justice in the appellate court, the Garcia decision is currently awaiting possible rehearing by the Ninth Circuit en banc, and is somewhat controversial. But now we have a second and seemingly conflicting decision in the Banana Lady suit - an action brought by Catherine Conrad, a/k/a the “Banana Lady,” who puts on private performances while wearing a costume in the shape of a giant banana. The case of Conrad v. AM Community Credit Union reached the U.S. Court of Appeals for the Seventh Circuit after photos and videos of her performance were posted to the Internet after a performance at a credit union trade association event - despite her desire to forbid this. The appeals court unanimously rejected her claim (one of many she has brought, some seemingly frivolous) and in a decision written by Judge Richard Posner the court held that Conrad’s performance “was not copyrighted or even copyrightable,” since it wasn’t fixed in a tangible medium. And because the videos taken by members of the audience merely portrayed non-copyrightable material, they didn’t infringe her rights. Conrad also alleged that the event organiser was contractually obligated to prohibit posting of videos of her performance — but the organiser showed that they did make an announcement announcement and so had not induced any copyright violations. The decision affirmed the federal court in Winconsin: "if you dance around in a giant banana costume at a public event, you cannot restrict people from posting pictures of you doing so under the auspices of copyright infringement."

Wednesday, 27 August 2014

Apologies to readers of Art & Artifice for the cross-post (a somewhat longer version of this notice was posted there earlier today), but here's a book that is of interest to copyright lawyers and owners, as well as to those whose focus is primarily on art. The book in question is Comic Art, Creativity And The Law, by Marc H. Greenberg (Professor of Law, Golden Gate University School of Law, US). This work has been recently published by Anglo-American publishing house Edward Elgar as part of its ever-increasing IP list, as part of its Law and Entrepreneurship series.

According to the publisher of this essentially United States-focused work:

The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art.

The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the ‘work for hire’ doctrine in copyright law and its effect on comic art creators.

Designed for academics, practitioners, students and fans of comic art, the book offers proposals for changes in those laws that constrain the creative process, as well as a glimpse into the future of comic art and the law.

This is an enjoyable and thoughtful book, part legal analysis, part history, part speculation and part personal reflection. The impact of the law on the fruits of creation is easier to assess than its impact on those aspects of creativity which it may deter or stifle, and the use of comic art as a powerful form of parody, satire or social comment keeps returning it to the point at which freedom of expression meets countervailing rights and interests -- but this book is neither repetitive nor preachy, even though Marc Greenberg never leaves it to his readers to guess his thoughts and feelings.

Tuesday, 26 August 2014

Our friend Tito Rendas has emailed us with the following news from Portugal:

"The Portuguese Council of Ministers has recently approved a proposal to amend Portugal's Private Copying Law. The proposal updates the list of reproduction equipment, devices and media on which the levy is charged. The fee has been charged on CDs, DVDs and cassettes since 1998. If the Parliament passes the proposed amendment, MP3 players, external hard drives, memory cards and the like will be subject to the fee as well.

As you would expect, the proposal has been generating a great deal of controversy: on one side, the electronics sector threatens to pass the cost of the levy on to consumers; on the other side, the collecting societies claim that the proposed levy amounts are negligible.

Along with this amendment, the Portuguese Government approved a Strategic Plan to Fight the Infringement of Copyright and Related Rights. What is known so far is that the Government plans to launch awareness (brainwashing?) campaigns in schools and to create a special police unit for online copyright infringement. No plans to introduce a graduated response system have been announced, though".

Thanks so much Tito -- and thanks for sending us a link to the Portuguese government's official announcement of this proposal.

Monday, 25 August 2014

On 1 October 2014 the beautiful London offices of Reed Smith LLP will host the 1-day Copyright and Technology conference, which promises to be very engaging. Incidentally, also I will be there as a moderator in the panel asking whether internet service providers should be copyright cops (this will also feature fellow blogger Asim, while John will be in the session on private copying).1709 Blog friend and organiser Bill Rosenblatt wishes to let our readers know that there is a special discount available for them. Those who wish to register have simply to select the relevant option in the registration form.This is not the only good news, as I have a complimentary ticket (worth £239) to award to the winner of a new contest reserved to full time students/trainees/apprentices. The background idea is that these deserving copyright enthusiasts might often struggle to find a sponsor to attend these sorts of professional events.

... orCopyright and Technology?

The competition requires aspiring entrants to create an artistic work, eg a photograph or (if you find it easier) a work of architecture, that illustrates in the best/most humourous/saddest/etc (it all depends on your perspective!) the relationship between copyright and technology.Once you are happy with your "own intellectual creation", email it to katcontest1@gmail.com, but do so by Monday 8 September 11 pm GMT.The IPKat will publish the best entries, so do please also provide an irrevocable gratuitous and non-exclusive licence when submitting your work.Good luck!

[I didn't spot that Ben had posted on this item over the weekend. However, since its subject matter is quite important, I decided to leave this post up in the hope that more people will spot it and make their comments known ...] A note by US-based law firm Greenberg Traurig LLP in the National Law Review, descriptively titled "China Solicits Public Comments on Copyright Law (Draft Revision for Review)", explains that on 6 June the Legislative Affairs Office of China's State Council circulated a draft revision of the Copyright Law of the People’s Republic of China for public comments. The main changes are said to be the following:

"Private Agreement on Copyright Ownership. The modifications in the Draft Revision reflect that in certain cases, parties involved may privately agree on the copyright ownership of the work created. For example, copyright ownership in the work created by an employee in the course of his/her employment may be decided by the employer and employee.

Collective Administration of Copyright. The current Copyright Law only contains one general article (i.e., Article 8) which provides that (i) copyright owners and owners of related rights may authorize a copyright collective administration organization (the Administration Organization) to exercise their copyright or related rights; and (ii) the Administration Organization may, upon authorization, claim the rights for the copyright owner or owners of related rights in its own name, and act as a party in litigations or arbitrations involving the copyright or related rights. The Draft Revision includes a separate chapter to set forth in detail (among other things) the nature, rights and duties of the Administration Organization, as well as the competent authority regulating the activities of the Administration Organization.

Calculation of Damages Resulting from Infringement. The current Copyright Law provides that the infringer of a copyright should pay damages based on the actual loss of the right holder. The Draft Revision proposes to introduce the flexibility for the copyright owner to claim damages based on different measures at his/her option. Possible measures include actual losses, the illegal income gained by the infringer, or a specific amount below RMB 1 million".

If any reader has further information about this draft law and how to comment on it, can he or she please post it as a comment below?

Ben posted on prospective reforms in China back in April 2012, here while Iona wrote about the introduction of registration in China in August of the same year.

The UK's Intellectual Property Office (IPO) has circulated details of yet another copyright question which has been referred to the Court of Justice of the European Union for a preliminary ruling, Case C-325/14: SBS Belgium. According to the IPO:

We have received notification of a new case referred to the Court of Justice: C-325/14: SBS BELGIUM, a request for a preliminary ruling on the interpretation of the Information Society Directive 2001/29/EC as regards “direct injection”.
The question referred to the European Court of Justice is:

Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection … make a communication to the public within the meaning of Article 3 of Directive 2001/29 … on the harmonisation of certain aspects of copyright and related rights in the information society?

This case and the questions referred to the court can also be viewed on our website at:

If you would like to comment on this case please e-mail policy@ipo.gov.ukby 4th September 2014 ...

This blogger understands that the term "direct injection" refers to the situation where a broadcasting company connects to the network of one or more cable companies directly. The programme in question is not first broadcast via ether or satellite and then retransmitted via cable, as is usually the case, but is broadcast for the first time via cable.

Saturday, 23 August 2014

The Legislative Affairs Office of the State Council has circulated the "Copyright Law of the People’s Republic of China (Draft Revision for Review) (the Draft Revision)" for public comments. The proposed changes include (a) new provisions for private agreements for the ownership of copyrights - in particular between employer and employee (b) new provisions to govern the administration and regulation of collection societies and (c) new provisions that would move China on from calculating damages based on the actual loss suffered by the right holder to a more flexible system that would include 'account for profit' and/or fixed damages up to RMB 1 million. More here.

Bulbasaur

Nintendo has pulled the plug (at least for now) on Claudia Ng who created a Pokémon-themed 'Bulbasaur' planter, originally for a friend. Ng also placed this design on Shapeways, a 3D printing platform - and this proved to be extremely popular: But Shapeways have now received a cease and desist from Pokémon International for infringement, and the planter has (currently) been removed. More here.A very angry sounding BoingBoing says this : "Rightscorp, the extortion-based startup whose business-model is blackmailing Internet users over unproven accusations of infringement, made record revenues last quarter, thanks to cowardly ISPs who agreed to lock 75,000 users out of the Web until they sent Rightscorp $20-$500 in protection money. Now the company plans to expand the program to all the major ISPs in America (thanks to cable company fuckery, this is a very short list). They have deals to threaten people on behalf of BMG, "plus artists belonging to the Royalty Network such as Beyonce, Calvin Harris and Kanye West." They demand $20 per alleged (and unproven) offense, and say that they're closing cases everyday for $300, $400, $500."

The BoingBoing headline Copyright extortion startup wants to hijack your browser until you pay reminded me of an amusing app developed by "Frustrated-mother-turned-evil-genius" Sharon Standifird called Ignore No More, an Android app that gives parents the ability to lock their kid’s smartphone from afar if they refuse to take their calls or call Mum or Dad back - making it unwise to ignore calls as all the hapless teen can then do is make calls to 911, with the app's website explaining “When you lock your child’s phone with Ignore No More your child has only two options – he or she can call you back, or call for an emergency responder”

Kim Dotcom, the boss of MegaUpload, who is currently fighting extradition to the USA on criminal charges related to copyright infringement, will not now be getting his assets back. An appeals court has now overturned an earlier decision by New Zealand's High Court. Dotcom's assets were seized after MegaUpload was taken off line in January 2012. The orders granting the seizures, issued by a US court and approved vy the court in New Zealand, expired in April and an application to extend them was turned down by the High Court.Rep. Robert Goodlatte has confimed that the current review of US copyright law by the House Judiciary Committe will continue Into 2015 and education and circumvention will be the next issues examined, More here http://www.bna.com/copyright-review-process-n17179894026/

This could be expensive: The BBC reports that one of Colombian pop star Shakira's big hits has been found to be indirectly copied from another songwriter's work. Judge Alvin Hellerstein in New York has found that Shakira's 2010 Spanish-language version of Loca had infringed on a song by Dominican singer Ramon Arias Vazquez. The Spanish language version. Shakira's missive, a collaboration with Dominican rapper Eduard Edwin Bello Pou, better known as El Cata - was widely released as a single around the world and borrowed from Loca Con Su Tiguer - but that song was itself was based on the Arias Vazquez track of the same name. Loca went on to sell more than five million copies and topped Billboard Magazine's Latin charts. Her English language version of Loca - which featured Dizzee Rascal - was "not offered into evidence" at the trial. In his ruling Judge Hellerstein said that while the hit single had been based on an earlier version of a song recorded by Bello [El Cata], this itself was a copy of Arias Vazquez's song saying "Accordingly, I find that, since Bello had copied Arias, whoever wrote Shakira's version of the song also indirectly copied Arias". Bello had denied outright the allegations made against him, claiming 'Loca Con Su Tiguera' was his song. Judge Hellerstein decided against his role as a writer, partly because of the existence of a cassette of the song in Arias's hands from 1998, and partly because of inconsistencies in Bello's story both inside and outside of court. The Shakira and Arias songs were sufficiently similar for there to be copyright infringement in a case brought by Mayimba Music who had acquired the rights in Arias' song, and it was that firm which sued various Shakira's record label, Sony, and associated companies involved in the hit. Image (c) 2009 Glastonbury Festivals Ltd.

Face without a face - Maya Hayuk

On a similar theme: a joke article and YouTube video by Chilean website Rata comparing portions of Tame Impala's 2012 song 'Feels Like We Only Go Backwards' and Argentine songwriter Pablo Ruiz 1989 hit 'Océano' which wentn viral has prompted a claim by Ruiz that "Obviously there is plagiarism. Whether they have done it on purpose or not, there are seven bars that are equal to my song".

The artist Maya Hayuk is suing pop star Sara Bareilles, her record labels Epic Records and Sony Music and the luxury brand Coach for using her 2014 Lower East Side mural Chem Trails NYC - as the backdrop for advertisements and promotional materials without her permission, The lawsuit, filed in a Manhattan Federal Court, alleges that Bareille used photos and video shot in front of Hayuk’s colorful, geometric mural to promote her recent “Little Black Dress” concert tour and album The Blessed Unrest. It seems Coach used the public artwork as a backdrop for images used to sell its upmarket clothes and bags online without Hayuk’s permission. She is seeking $150,000 each from Coach and Bareilles.

The Royal Bank of Scotland Group Plc has reached a settlement with Complex Systems allowing it to continue using a key piece of software in its trade finance business. A U.S. court had perviously had prevented the bank from using the software after a claim for infringement was brought by Complex.

And finally ...... back to that Black Macaque: The U.S. Copyright Office addresses the dispute in the latest draft of its “Compendium Of U.S. Copyright Office Practices”, which was published on August 19th. The previous compendium stated that “Materials produced solely by nature, by plants, or by animals are not copyrightable.” The new 1,222-page report again makes their stance on animal artwork clear by referring specifically to photographs taken monkeys (and other species of course). “[T]he Office will refuse to register a claim if it determines that a human being did not create the work.” And the Report gives more clarity: Did you know (?) that the Office will not register- a work purportedly created by divine or supernatural beings.- a musical work created by solely by an animal such as a bird song or whale song. - a musical composition created solely by a computer algorithm.- dances performed or intended to be performed by animals, machines, or other animate or inanimate objects- pantomimes performed by animals, robots, machines, or any other animate or inanimate object [for more see chapter 300].

Do you disagree with the U.S. Copyrght Office? You can have your own say - dont forget to vote in our side bar poll!

Friday, 22 August 2014

Peter Lawton, of London-based Cacophony Ltd write to ask for a bit of guidance. He says:

"I am a music publisher and have been trying to explain the difference between the copyright in the recording and the copyright in the underlying composition to a Polish company. They claim the law is different in Poland and when an artist signs a record contract they automatically assign the composition as well. They use the phrases "economic rights" and "derivative rights" (note: not defined and meaningless to me in this specific regard) to substantiate their claim.

I've been digging around to find something specific but reasonably intelligible to someone who's English is less than perfect (but an awful lot better than my Polish) which explains in either English or Polish -- with English translation so I can check it -- that the two rights are not the same and that EU legislation distinguishes between the two. I thought it would be easy to find but it seems not.

If anyone feels in the mood to give me bonus I also need to explain that covering a song does not mean the copyright in the composition is automatically acquired by the performer as well.

Thursday, 21 August 2014

Earlier this week the U.S. Copyright Office released its Public Draft of the new Compendium of Copyright Office Practices(third edition, to be precise, weighing in at 1,222 pages). Our good friend Magali Delhaye introduces it thus:

Whether on the beach, under a tree in the countryside or at the office, readers of the new Draft Compendium will find in its more than 1,200 pages a very comprehensive administrative manual of the Register of Copyrights concerning the mandate and statutory duties of the Copyright Office under Title 17 of the United States Code.

The new Draft´s aim is to provide instructions to agency staff regarding their statutory duties as well as to offer expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law. The Draft Compendium addresses fundamental principles of copyright law such as standards of copyrightability, joint authorship, work for hire, and termination of transfers, as well as routine questions involving fees, records retrieval, litigation documents, and other procedural matters.

The new Compendium will remain in draft form for approximately 120 days, pending final review and implementation, taking effect on or around 15 December 2014. Members of the public may provide feedback on the Compendium at any time before or after the Third Edition goes into effect.

Wednesday, 20 August 2014

As I have noted before on this blog, photography occupies a rather unique place in copyright law inasmuch it is (or at least can be) a creative work protected by copyright as well as a vehicle for infringing the copyright of others. It is this latter aspect that was on display in a recent ruling by the Paris Court of Appeals involving furniture co-created by famed archictect Le Corbusier and images thereof available for licensing on Getty Images' database.

Upon learning of photographs on Getty Images's voluminous image database that reproduced the furniture, the plaintiffs (holders of the moral and economic rights to the works) brought suit for infringement of copyright in the pieces of furniture.

After a detailed analysis of each photograph, the Court concluded that in certain pictures, the original furniture was indeed reproduced in a non-fortuitous manner (clearly identifiable in particular in their original aspects, central position in the foreground). This is an application of well established principles in French law under which reproduction of protected subject-matter in photography escapes liability provided it is incidental, fortuitous or accessory to some principal object. The Cour de cassation has held that this "exemption" is a limitation not an exception and survived the French transposition of the InfoSoc Directive's (closed) list of possible exceptions (see here).

The 2006 statute that effected the transposition did include an exception for the press with regard to the reproduction of certain works (e.g. buildings, statues) for news purposes (Section L.122-5, par.9 of the Intellectual Property Code - see here) but this was not applicable in this case.

As regards the issue of damages, the Court was unmoved by Getty's argument that there was no evidence that licensing of the pictures at issue had any adverse effect on sales of the actual furniture that was reproduced in the pictures. Applying principles in effect in france since the 2007 transposition of the IPR Enforcement Directive, the Court looked to Getty's profits and awarded the sum of €1,800 per infringing photograph, in light of interalia the quantity of images in the database and their exposure thereon (it pointed out that Getty itself claimed that its image database contained over 80,000,000 images) as well as Getty's bad faith (it had continued to offer the images for licensing despite an initial judgment in the plaintiffs' favour).

Getty's argument to the effect that there was no violation of Le Corbusier's right of attribution (paternity right) because his fame ensured that the public would be able to identify him despite his name not being cited was rejected out of hand by the Court.

Monday, 18 August 2014

The the major record labels (Sony, Universal Music and Warner Music) have finally begun their case against Russian social media site VKontakte (VK) for "large-scale" music piracy. Dubbed "Russia's Facebook" and the 22nd most popular site in the World, VK allows users to upload music and videos but is accused of refusing to strike licensing deals with rights holders. Now a combined case from the labels has gone before the St Petersburg and Leningrad region arbitration court and a series of substantive hearings will begin on 8 September, and is expected to run into October. The labels are seeking £1m in damages and an order requiring VK to implement fingerprinting technology to delete copyrighted works and prevent them from being re-uploaded. According to labels trade body the IFPI, growth of licensed digital services in Russia is only $0.50 per capita; the European average is $8.40 and licensed services in Russia including local services Yandex, Trava and global services iTunes and Deezer are suffering with IFPI boss Frances Moore saying ""VK hurt competitors because they are not paying anyone for anything - you cannot compete with that". It seems the delay in passing the new exemption from copyright for parody into British law (or indeed allowing Scotland to devolve to pass its own parody laws) may well have caused a problem for one of the productions at this year's Edinburgh Fringe festival. The Times tell us that The Edinburgh Book Club - the producers of 50 Shades the Musical - have received a letter from legal representatives of 50 Shades of Grey writer EL James and her publishers. The musical was created in the USA by producers Baby Wants Candy under the somewhat more generous 'fair use' provisions found stateside. More here.

The mural ' Castillo'

A still from The Zero Theorem

Three street artists, two Argentinian and one Canadian, and known as Jaz, Ever and Other, have accused the Monty Python actor and film director Terry Gilliam of plagiarising one of their murals in his latest movie The Zero Theorem. Deadline reports that "To make their point, the three try to show with the vast array of images and pictures in their complaint that similar faces and undershirt wearing animal figures from the mural were used in the film" adding "To further their claim, the trio notes that they registered the mural with the Copyright Office in Argentina, under the title Castillo effective on November 15, 2013." Here are the two images - the 2010 mural on Buenos Aires first, and a still from the film second:

Angelina Jolie emerged victorious in court last year when a judge ruled she had not copied another author's work for her film In The Land Of Blood And Honey - and you can see Eleonora's article on the background to this case here. But journalist and writer James Braddock is now appealing against the decision. In papers filed in March 11 this year, the Croatian author claims the original judge in the case 'used a poor system to determine if Jolie had infringed on his copyright,' for his book The Soul Shattering reports says the Daily Mail. Claiming his book was not translated accurately, Braddock says in the appeal papers: 'The Court’s decision noted a number of material errors, starting with clear descriptions that are interpreted or translated incorrectly, to the downgrading of a complex of the work. 'The court did not compare the whole scene at all elements, but he pulled the individual parts! In this way, the bit violated all the rights of the Appellant’s, violated the law and the tests that were performed were not executed in the right way.'

Motherboard reports that the Trans-Pacific Partnership (TPP) trade agreement negotiations have resumed, and a "troubling" provision has come to light. The United States government is using an enhanced version of the provision known as "certification," which allows it to change other countries' domestic obligations at will. This has internet freedom activists worried that the US may enforce draconian copyright laws globally. The Times (Saturday 16.08.14) also had a warning from celebrity chef Jamie Oliver that the TPIP could downgrade high food safety standards in the UK - to rules that prohibit food grown and reared using pesticides, hormones, carcinogens and dodgy additives were watered down to help US farmers and food producers - and sate the US need for 'free trade'. Hang on the CopyKat thought - what's THIS TPP - ahhhhh - it's the Trans-ATLANTIC Trade and Investment Partnership - just one letter different - but oceans apart ........... hopefully.

The Premier League is set to clamp down on 'unofficial' videos of goals in the social media posted on platforms such as Twitter and Vine - uploaded by fans, stating that they break copyright laws. Premier League’s director of communications Dan Johnson told the BBC that it is developing technologies like gif crawlers and Vine crawlers to stop the behaviour saying "You can understand that fans see something, they can capture it, they can share it, but ultimately it is against the law. And here's a question - is that videos ripped from Sky TV, BT Vision or the BBC - or their own videos - taken (usually) on mobiles? And does it matter? More from Eleonora over on the IP Kat: http://ipkitten.blogspot.co.uk/2014/08/uploading-goal-videos-online-copyright.html .

Thursday, 14 August 2014

Earlier today our dear Jeremy set up a poll asking 1709 Blog readers the following question:

THAT BLACK MACAQUE SELFIE: WHAT DO YOU THINK?

There is probably need to recall neither the background story nor what a macaque looks like: everybody knows already but, just in case, here you go.The update on this story is that, following much copyright-related speculation, YOU can now have your say by selecting one of the following options:

The monkey owns the copyright: she's the author, after all [this is fairly reasonable, just look at the IPKat: he has never doubted that Merpel - his favourite feline - owns the copyright to the posts she authors]

Only humans are authors so the photographer owns the copyright as the nearest relevant human

There is no copyright in works "authored" by animals: they are a gift to humanity which we can all use

The United Nations should set up a special agency to own and control uses of all non-human works like this

Whichever human gets to it first can keep it, just like any other bona vacantia

You have time until 1 September to cast your vote in our poll, conveniently situated at the top of the right-hand side of The 1709 Blog side bar.

Wednesday, 13 August 2014

It is with great pleasure that this weblog hosts the following piece by Fidel Porcuna (Bird & Bird, Madrid), inspired by a recent bit of thinking on Communia by Paul Keller. Writes Fidel:

"If we should pick a single measure, among several which the Spanish government seeks to implement via the new reform of the current Spanish Intellectual Property Law (passed by the lower chamber of the parliament on 26 July 2014), which has received and continues to receive major criticism globally, that would be the measure dealing with the news aggregators' compulsory levy (also called "Article 32.2", "Google levy" or, more properly, the "AEDE levy"). By this levy, electronic content aggregation providers using "non-significant fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly updated" will trigger a right to an equitable remuneration. This remuneration is to be compulsory managed by a collecting society in favour of publishers and other relevant right-holders (the association of journalists is also claiming an entitlement). Contrary to the current legislation where this remuneration exists, this new law makes the remuneration unwaivable, literally "unrenounceable". This inclusion has opened a Pandora's box in which the tensions between aggregators and publishers have so far been locked. While publishers are interested in obtaining economic gains from the reuse of copyrightable fragments, aggregators maintain that this reuse brings large benefits to publishers in terms of redirecting links, and a fair use exception is applicable based on general interests of free creation.

Is this now unwaivable character risking the commons? In his thoughtful and well-documented article, "Did Spain just declare war on the commons?", Paul Keller explains the damage linked to the inability of providers to choose how to exercise this right, let alone the ambiguity of the wording of the new law (e.g. is it really meant to be so broad to include every website which is regularly updated and contains information or opinions, such as a blog; what length is required to be included in the definition of non-significant fragments?) First, Keller argues that the reform will limit creators and publications who want to encourage others to reuse their content because they will not be able to waive the requirement that users must pay for aggregating their content. Secondly, non-traditional publishers may do not want to be remunerated for re-use of non-significant fragments taken from their websites since their business models are based on traffic or because they are interested in sharing their writings as widely as possible. Thirdly, Keller argues that it will render ineffective the Creative Commons licences or other works benefiting from the free culture. He concludes that the reform is another ill-conceived attempt to support the failing business models of traditional publishers by misusing intellectual property law. The view coincides with recent Ricardo Galli's interesting article published in El Mundo, where the conclusions from the Competition Commission's report on the subject are cited. Ricardo Galli is founder of Menéame, the first aggregator provider in Spain and fourth after Google, Twitter and Facebook.

This blogger shares the concerns of Keller, but somehow has hopes that the new Article 32.2 will not bring such an apocalyptic scenario. Creators and right-holders of music works whose "unwaivable" rights were managed via collecting entities seem to have found their way to obtain from Spanish Courts respect for works shared under the free culture movement. Since this measure is ultimately linked to the publishers' rights --despite being designed as the new ancillary right to news aggregators-- and not all publishers do agree with the AEDE levy, the collateral damage as described by Keller perhaps will not come to pass".

Monday, 11 August 2014

Following the big
wave of 1990s-early 2000s EU copyright reforms leading to Directive 2001/29, the
so-called InfoSoc Directive, which was adopted in 2001, over the past few years
the main feature of EU Commission’s copyright policy has probably been its
consultations with interested stakeholders about the need for further updates
or major reforms of the acquis. It is
however difficult to think of consultations that have translated into actual
reform proposals.

The 2008 Green Paper on Copyright in the Knowledge Economy included a call for comments (about 350 were received) on issues
pertaining to exceptions and limitations in Article 5 of the InfoSoc Directive.
Nothing changed as a result of this stakeholder exercise, unless you consider
the creation of the Content Online Platform, ie a “stakeholders’ discussion and cooperation platform”, an actual
step forward for EU copyright reform debate. The outcome of the 2009
Consultation on Creative Content Online
was not more encouraging. Despite being aimed at discussing the challenges facing
digitization of content and distribution channels, it attracted around 200
responses (more than 40% down on its 2008 predecessor), and passed unnoticed
outside niche – possibly too niche – circles.

Switching for a
moment away from public consultations, in its 2011 blueprint ambitiously titled
A Single Market for Intellectual Property
Rights boosting creativity and innovation to provide economic growth, high
quality jobs and first class products and services in Europe, the
Commission anticipated a number of (minor, I think) legislative initiatives (on
orphan works and collective rights management) and – again – a new round of
consultations on two topical copyright issues, ie further harmonization of copyright laws of Member States, and
re-opening the InfoSoc Directive. While the EU has adopted specific directives
on orphan works (Directive 2012/28) and collective rights management (Directive2014/26), no progress has been made on the front of the two really big policy issues
identified in the blueprint.

Enjoy daydreaming?

Proof of the above
is the most recent Public Consultation on the Review of EU Copyright Rules that ran between December 2013 and
March 2014. Again, the Commission asked about deepening the harmonization of
the copyright laws of EU Member States and the need to change, clarify or update
key provisions of the InfoSoc Directive with regard to both exclusive rights
and related exceptions and limitations. Following its conclusion,
there should be (or rather: should have been, considering that current
Commission’s term of office will end in October this year?) a White Paper aimed
at identifying potential areas for legislative intervention, and an Impact
Assessment. Draft versions of both documents have already been leaked [here and here], and do
not look particularly ambitious. All this creates the impression that , this time
too, no real copyright reform will occur.

This may not be the
worst case scenario though.

What is most
worrisome is the high – and at times fairly intolerable – degree of
partisanship of those involved in the copyright debate and the instrumental use
that the Commission itself has made of the instrumental data thus collected.

In a recent
briefing prepared for the European Parliament, Adapating the EU Copyright Rules to the Digital Transformation,
Stéphane Reynolds reviewed the implementation, application and effectiveness of
EU copyright policy over the past few years. He observed that public
consultations have featured prominently and have essentially served to gather
and confirm qualitative, rather than quantitative, data. In other words, you
were not mistaken in thinking that all those stakeholder exercises looked like sort
of a déjà-vu: they were.

There might be places where all this is daily business!

To this add the
sudden rise in the numbers of participation: the 2013-14 Public Consultation
received 9,500 responses. This was not because Europe has been recently invaded by armies of copyright
enthusiasts, but rather because popular stakeholder-driven initiatives such asFix
Copyright!, Creators for EuropeandCopywrongs.eu really boosted
participation by providing pre-filled response forms. While this is good for
creating a copyright culture among non-specialists too, it also strengthens the
impression that consultations are increasingly bound to become repositories of repetitive
data that can hardly be considered economic evidence (apparently the only real,
acceptable type of evidence), if evidence at all.

Where is EU copyright policy heading? Besides
well-known refrains on competitiveness and effectiveness of the EU single
market, its direction remains unclear. Moreover, it seems that repeatedly asking
the same people might not help see the way.

The next Commission will hopefully appreciate the actual
legacy (if any) of these years spent consulting, as well as the quality of the
data used to carry out the most recent (minor) reform agenda. But will it?

In its submission to the US Department Of Justice's review of collective licensing in America, music collecting society BMI has said that it believes that music publishers should be allowed to choose which rights they allow it to administer. It also says that BMI should be able to represent all rights in a musical work, including the mechanical right, not just the performing right, in order to create a "one-stop" licensing option and wats to see a new way for royalty rate disputes to be resolved. Just twenty four hours later the other big US song collection society ASCAP echoed those proposals, saying that allowing its members to pick and choose which specific performing rights it handed over to the collecting society to administer was "necessary to hold the system together". It also argued that being able to license mechanical as well as performing rights is "something that ASCAP's competitors are already free to do".The BBC reports that the City of London Police's IP crime unit (PIPCU), which has been targetting web-block circumventing proxies, have now forced a number of these proxies offline and that one man has reportedly been arrested in connection with running a proxy server.

Sofie Gråbøl in The Killing

Sarah Lund, the star of the Scandanavian hot TV detective series The Killing, did an awful lot to promote chunky jumpers - the sweaters worn by actress Sofie Gråbøl became almost as famous as the cast of the Danish drama and Gråbøl admitted that her character had become dependent on her jumper and plans to scrap the woollen bound image were themselves scrapped by TV bosses. The show also prompted huge demand for the distinctive design - and now a lawsuit. The Faroese designers of Lund's original sweater, Gudrun & Gudrun, took legal action against Danish company Stof og Sy, which had made a considerably less expensive version of the "Lund" sweater - albeit one you had to knit yourself - retailing at 372 kroner (£40) rather than 2,887.50 kroner (£310) for a Gudrun sweater. But the claim for copyright infringement has failed - with a Horsens court in Denmark deciding that Stof og Sy can continue selling jumpers that resemble those from the acclaimed television series after Stof og Sy convinced the court that the star pattern used on the Lund jumper is an ancient and traditional Faroe Isles pattern - and the design of the jumper itself is based on the Faroese fisherman's sweater - both and hundreds of years old - so no violation of any copyright (or marketing laws) had taken place. More here and here.

The Nigerian Copyright Commission (NCC) said it had seized pirated books, worth over N10 million, after a raid of markets and book shops, the Mile I Market and His Grace Bible House, Rumuowuta, all in Port Harcourt. The Commission disclosed that it has impounded 19 containers, suspected to be loaded with pirated books, at seaports and borders across the country.

The U.S. Court of Appeals for the Sixth Circuit has confirmed that a party claiming infringement of copyrighted computer software must identify those components of the software that are protectable under copyright law before a jury can determine the substantial similarity of the defendant’s software. Automated Solutions Corporation v. Paragon Data Systems, Inc., Case No. 12-3025; -3058 (6th Cir., June 25, 2014) (Cleland, J., sitting by designation). More here at the National Law Review website.Re/Code reports that videogame streaming site Twitch's announcement that videos in its archives with unlicensed music will be flagged and partially muted has been met with some consternation and anger by users: Twitch has now admitted that it “screwed up” the announcement and has promised to add an “appeal” button for music that users think was flagged in error. But the actual act of cracking down on that unlicensed music, a seemingly necessary move to "avoid trouble from the litigious music industry", is here to stay.

Ronald Reagan: Official Portrait, 1981

Author Craig Shirely, an expert on former US president Ronald Reagan, is threatening to sue another author and biographer, Rick Perlstein, for copyright infringement for his new Reagan book, The Invisible Bridge, seeking that the publisher of Perlstein's book pulp all copies, pay $25 million in damages, and take out adverts apologising to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon. TechDirt suggests that Shiley's claim is rather unfounded saying "what he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history" adding "And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.". Expect quills at dawn. Music Publisher EMI has asked the Second Circuit to affirm it's victory in the battle with the heirs of songwriter John Frederick Coots over the ownership of the copyright in the song "Santa Claus Is Comin' to Town," asking the appellate court to confirm the lower court decision that company owns the song's rights until 2029. In a brief to the appeals court, EMI urged the Second Circuit to uphold U.S. District Judge Shira Scheindlin's ruling that Coots' heirs couldn't use the termination provisions under the Copyright Act of 1976 to regain the rights.

One of the disputed 'selfies'

Over on the IPKat Jeremy has posted a guest blog from Estelle Derclaye which re-examines the Case of the Black Macaque - the dispute between Wikipedia and British phorographer David Slater about some monkey business.- the snaps taken when the photographer's camera was stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 - and the monkey took a few shots of herself. Back in 2011 Aurelia J. Schultz posted an article on the 1709 Blog looking at this from the perspective of UK law and Indonesian law - as that is where the photo was taken - and the Daily Mail published the pictures here in the UK and online - and one of the thtee published 'selfies' had (C) Caters News Agency embedded in the shot with Mr Slater explaining "One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy" and "At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection. They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it". There is no mention of Slater amending the shot at that time although the three shots do look beautifully positioned and cropped in the Mail. Aurelia's opinion on the then known facts - "it appears under UK law, the photos are in the public domain. Under Indonesian law, the matter is less clear." Slater is now looking to have the photos removed from Wikipedia: Wikipedia believes that although the photos were taken on the photographer's camera, he does not own the copyright because he did not take the photos. The Wikimedia Foundation spokeswoman, Katherine Maher, said that under US law no one owns the copyright and a message on its site states: "This file is in the public domain because as the work of a non-human animal, it has no human author in whom copyright is vested." Slater believes that Wikipedia's refusal to remove the article and a link to a free download of the images has negatively effected his livelihood and earnings. Estelle's view - "So is there copyright in the photograph? It seems

like this will be an evidential issue. If the photographer did indeed adjust the camera settings and the monkey stole the camera, then the monkey just pressed a button and is not the author, but the photographer is" and asks whether amendments such as cropping can "qualify the photograph as a derivative work made by the photographer?" concluding

"The photographer may have a case -- and he actually wants a court to decide the issue." There were ten comments last time I looked - a couple of which are well worth a read. And with all this monkeying about, why not take a look at Eleonora's blog on the infamous 'Oscars' selfie - another copyright conundrum - but this one caused by actors rather than apes! And here's what hapens when you put a camera amongst a pride of lions ........ something that actors would NEVER do! And an interesting blog on this from Andrew Charlesworth, Reader in IT & Law at the University of Bristol, looking at both the concept of who can be a person and who might own the copyrights - and which jurisdiciton might apply here - and from an Australian perspective (what if a Koala took the selfie) see much more here.

That Oscars selfie and an automated snap of lions

And finally (and as you enjoy these various selfies) the CopyKat came accross a rather well written article about "common copyright myths related to fan fiction". The blog, A Fresh Look at Copyright and Fan Fiction by non lawyer Deb McAlister-Holland was actually an update of an earlier blog about fan ficiton and the author had been contacted by attorney Heidi Tandy who then helped McAlister-Holland through this tricky area - recently thrust into the public eye with Conan Doyle Estate's unsuccessful attempt to protect an expired copyright in many of the Sherlock Holmes stories and the characters of Holmes and Dr Watson. This new article is a good read and looks at transformative works under US law, The Supreme Court's decision in Campbell v. Acuff-Rose Music, the "Harry Potter Lexicon" case, and commercial and non-commercial uses in the USA in the context of fan fiction. If you have a burning urge to write the next sequel or prequel to Lord of the Rings, or deveop your own 'Harry Potter' characters or bring new tales of vampiric delight with your own Twlighight Saga you can find the original article here and the updated article here.

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